One of the great benefits of the blawgosphere is learning about the quirks of far away jurisdictions. Sometimes, it leaves me with a deeper appreciation of my home base being in New York. Other times, I wonder how it’s possible that some backwater jurisdiction can be so much smarter, so much more progressive. This time, I stand in awe of Texas.
Sure, they have an overdeveloped affinity for killing people down there, whether by execution or shotgun if “they needed killin’.” They also have an awfully good sense of why a swearing contest at trial isn’t good enough to convict a person. From Mark Bennett :
Add this to the list of reasons that Texas is a better place to practice criminal defense law :
Art. 38.075. Corroboration of Certain Testimony Required
(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.
The claim of the jailhouse snitch that someone confessed, without corroboration, is legally insufficient to convict. This is the third leg of the corroboration stool in Texas, along with the informant corroboration rule and the accomplice corroboration rule. New York has an accomplice corroboration requirement, but that’s as progressive as it’s gotten.
An informant or jailhouse snitch is all it takes to sustain a conviction. In other words, put the lowest, sleaziest, most likely liar on the witness stand after the government slaps on a little lipstick and rouge, and you’ve got enough to put the Pope in prison for life. No one has a greater incentive to lie, to say anything about anyone, than the miscreant caught who can trade his freedom for another person’s.
With amazing regularity, defendants ask whether the cops have a videotape of them doing the deed of which they’re accused. Their point is that if they can’t show it, how then can they prove it. The answer is that the word of a rat is all it takes. Mind you, ten minutes before the prosecution decided to embrace the rat with open arms for speaking the words the government wants to hear, this same individual was the most disgusting, incredible, worthless piece of smegma (Marilou: “ewwww”) on the face of the Earth. But once the rat offers the government what it wants, he’s suddenly taller, more handsome and absolutely, totally, unquestionably the teller of truth.
Of course it’s absurd. There are tricks played to conceal the stench of this witness from the jury. The sign up sheet requires that the rat “tell the truth” or no benefit comes his way. While he certainly wants his benefit (read: freedom), the only way he gets it is to tell the truth. That’s why he does it; that’s what he’s doing. Yes, he was once a bad guy, but now he’s just telling the truth. He’s turned over a new leaf. He sees the error of his ways. And our government, whether state or federal, has welcomed him back into the fold.
What a load of crap, and yet it works most of the time. The problem in going to trial facing the rat is that it’s a crap shoot, rolling the dice as we often explain it. Perhaps the rat will come off terribly in front of the jury. Perhaps the rat will break down and admit that he’s a lying sack of rodent turd. Perhaps he will lie and get caught in his own machinations. Or perhaps he will be cleaned up, well prepared, and present himself as a credible witness. Roll the dice and find out.
When it comes to the jailhouse snitch, there’s another problem that needs to be considered. It may well be that one prisoner tells another that he committed the crime. Inside, there’s a certain benefit to be gained by making others think you’re a criminal, a tough hombre, a man to be reckoned with. By gaining respect within a perverse world, the odds of leaving alive and intact are increased. If nothing else, it may spell the difference between being left alone and being the target of abuse. While the incidence of prison rape may be overstated, it is nonetheless a very real concern.
Because of this, there is an incentive to play act being more of a criminal than one really is. It behooves a prisoner to take some credit for crimes and acts of violence, make a show of bravado and machismo, to his fellow prisoners. Nobody wants to find out in the shower that other prisoners don’t respect him.
A foundational component of admissible evidence is reliability. There are others, but evidence which, by its nature, is inherently unreliable has no business being used in court. Rat testimony has long fallen into this category, though others disagree. When there is an overarching motive to lie to gain a benefit, or putting it in more explicit terms, when testimony is bought and paid for, it’s inherently unreliable. And yet it remains admissible.
The Texas statute has the saving grace of recognizing that this unreliable testimony, without corroboration, is legally insufficient to sustain a conviction. Though still admissible, it can only be used to bolster other testimony or evidence to prove guilt. Less than perfect, perhaps, but a whole lot better than we’ve got in New York.
Hey Albany, how does it feel to be outflanked by some yahoos from Texas? Chuck Lavine, what the heck are you doing for us up there? Eric Schneiderman, now that you’ve got the lock on AG, maybe you can use your clout to stop making New York look like some runner-up in the Reason Pageant. For crying out loud, when Texas passes better laws than New York, it’s humiliating. Get off your duffs and do something about it.
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With this subject of “jailhouse snitches,” Greenfield touches on what I refer to as postmodernism in the field of law–to put it simply, truth is relative, there’s little difference between made-up evidence and physical evidence because reality is so tricky anyway, and the like. From what I’ve seen, prosecutors use this–not the question of the reliability of evidence–to make many cases. For them, their mentality, not evidence, is the basis for many cases; and trial is theater. They see themselves as directors or editors, not scientists, fact-finders, or logicians. And jurors often reward them for the show they put on.
Greenfield describes the use of a jailhouse snitch as the prosecutors “rolling the dice”. (period outside parentheses–see, I’m postmodern, I make up my own rules as things go along, known as the aleatory quality of postmodernism) I have described this widespread practice of prosecutors in a somewhat different way: I see law-enforcement’s use of jailhouse snitches–as well as confidential informants–as prosecutors calling a game of joker’s wild with them as the dealer; and in this game, they can deal themselves as many jokers (i. e., snitches) as they want to ensure they win.
To be fair, the law didn’t get better without somebody taking initiative to get it changed.
Since everyone knows Texans are prone to boasting, I’ll mention that the first draft of that jailhouse informant corroboration law, which passed in 2009, was written on the computer where I’m currently writing this blog comment. I was lobbying for the Innocence Project of Texas that year, wrote the initial draft and found the bill sponsor (state Sen. Juan “Chuy” Hinojosa, who was absolutely terrific). The DA’s association insisted on a couple of minor changes, then it actually passed with surprising ease, in part because the opposition spent their time fighting even more significant innocence-related legislation.
More difficult to get through was the one on drug informants. I was also the lead lobbyist on requiring corroboration for snitches in drug cases (back in 2001, on behalf of ACLU of Texas at that time). Hinojosa carried that bill, too, though at the time he was in the Texas House. When that law took effect there were hundreds of pending drug cases dismissed because prosecutors had no other evidence. Also, it was prosecutors searching for corroboration in snitch-only cases that uncovered the Dallas “fake drug” scandal, where two-dozen people were set up by mendacious (highly) paid informants using fake drugs. Google that one if you’ve never heard about it.
The key to passing the bill on informants in drug stings, fwiw, was getting the religious right on board. It turns out that in the Bible, Moses, Jesus and the Apostle Paul all explicitly stated that no conviction should be obtained except on the testimony of “two or three witnesses.” Since you don’t allow links in comments, I’ll email you a flyer to that effect that we had several preachers distribute by hand to religious conservatives at the capitol, as part of a campaign to change drug laws following the Tulia scandals.
And Henry, a period outside the quote marks isn’t “postmodern,” it’s British.
First, congratulations and thank you. Great law, great effort. Just plain great.
Second, your co-opting the religious right is brilliant. Pathetic that it was necessary, but brilliant as a tactic. Here’s the “missing link” you sent me via email. I love the “What would Jesus do” argument. Seriously, it’s genius.
The rule about the comma may be British. But being capricious about where the comma goes–which is what I was referring to–is typically American. Sometimes I’m American, sometimes I’m British, I guess, depending on my mood, so I’m postmodern. And to clear up an error in my reply on Greenfield’s posting on this issue of the comma–I meant to say that I am tending to put the comma outside of the quotation mark because the comma is not part of the quotation. I erroneously said the “quotation mark” was not part of the quote, but this wasn’t the issue.
Thanks Scott, for the kind words.
I don’t consider it pathetic, fwiw, that we had to appeal to the religious right. It was actually a pleasant, enlightening experience. Too many Dems were/are in the pocket of the police unions so even though they were still in the majority in 2001 at the Texas Lege, you can never pass crimjust reforms relying solely on the Dems, here or anywhere. My view is that partisan labels are mostly meaningless, and success is found by appealing to individuals or factions based on their own value systems instead of insisting that everyone must agree with me before a bill can move forward. The key is respecting others’ values and finding areas of overlap where you can work together. Regrettably, to use Billy Joel’s phrase, that’s not typically a “New York state of mind.”
Grits:
First, great work.
Second, please move to California.
Third, thanks for the heads up on the passages. While we don’t have the snitch corroboration on the books here, I can certainly use these words in argument.
I thought this post was going to be about some kind of super-profanity for when the regular stuff won’t cut it.
Yeah, me too, but I think this was better.
Sorry, I’m not impressed with the Texas statute. As you rightly point out, we have the same idea for accomplice testimony; but the problem is the “corroboration” requirement is so thin that almost anything qualifies. I would guess this one works the same way down there on this statute.
If we’re going to let judges exclude evidence on “reliability” grounds, which I think has a lot of problems of its own in other contexts, then the only meaningful restriction, in my view, is a bright line rule that jailhouse snitch testimony consisting of “the defendant said [fill in the blank, but usually some variation of “I did it.”]…” is not admissible. Period.
Even if a snitch says: “He told me where the body was!” and it turns out to be true, there is such a significant likelihood that he’s shielding himself or someone he likes better that there’s no reason to admit the evidence.
Get something else, says I. Don’t admit jailhouse snitch testimony under any circumstances
Oops. I hadn’t read grits’ post. Don’t mean to denigrate the effort you put in. Obviously, getting such a statute passed at all was a significant achievement. I’ll echo everything Scott said in terms of congratulations.
I feel embarrassed. My apologies. Mea culpa.
I think we should have unicorns be judges, only unicorns. And kegerators in every courtroom.
I understand. I’ll apologize to you, too, if you like.
No need to be embarrassed, John R, or apologize – your point is well taken and I largely agree with it, especially for jailhouse informants. But as Scott G says, it’s still better than NY law. And for drug informants, it’s actually been quite a big deal. One of the links I sent to our host (which I’d post here if it didn’t violate house rules) was about an 80-year drug sentence overturned just this summer because of the lack of corroboration. So it ain’t the end all be all, but it ain’t nothing.
No thank you. I thought we were just categorizing entirely unrealistic wishes.
In the military system, similar to TX, any confession must be corroborated by “some evidence.” This, of course, could be very slight. Most of the time, it is not an issue because it is simple to overcome. However, an inexperienced prosecutor will occasionally assume that the confession is enough without reading the rules.
Also, I’ve found that my juries under the Uniform Code of Military Justice view each witness with a very critical eye. Given the pool and selection process, a majority of military jurors have a college degree with a plurality having some advanced degree. Additionally, the average member has at least 16 years of military service. They are often loathe to move forward to conviction with only a verbal confession to a dubious witness coupled with weak corroboration.
These aren’t evidentiary rules. They don’t affect the admissibility of evidence, but instead effectively increase the State’s burden (to BRD+) in cases in which the State relies on accomplices, drug informants, or jailhouse snitches.
A trial court could grant a judgment of acquittal where the snitch testimony was not corroborated, or the Court of Appeals could reverse and render for legal insufficiency, but the amount of corroboration required by juries is, in my experience, more than that required by courts.
This is a sharp arrow in the trial lawyer’s quiver, especially when the other side doesn’t see it till it’s too late.
Holding tight to some evidence until it’s too late for the prosecutor to effectively rebut it. Good tactic. Where’d you get that idea?
Wow. Dim.